Himachal Pradesh High Court

____________________________________________________ vs Sher Singh on 15 May, 2025

Bench: Tarlok Singh Chauhan, Sushil Kukreja

( 2025:HHC:14150 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. Appeal No. 325 of 2015 Reserved on: 01.05.2025 Decided on: 15.05.2025 ____________________________________________________ State of Himachal Pradesh .....Appellant.

                              Versus
Sher Singh                                    ......Respondent.

_____________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting? No. _____________________________________________________ For the appellant/State: Mr. I.N. Mehta, Mr. Yashwardhan Chauhan, Senior Additional Advocates General with Mr. Ramakant Sharma, Mr. Navlesh Verma, Ms. Sharmila Patial, Mr. Sushant Keprate, Additional Advocates General and Mr. Raj Negi, Deputy Advocate General.

For the respondent: Mr. Ajay Chandel, Advocate. Sushil Kukreja, Judge.

The instant appeal has been preferred by the

appellant/State under Section 378(3) of the Code of Criminal

Procedure against the impugned judgment dated 24.12.2014,

passed by learned Additional Sessions Judge Kullu, District Kullu,

H.P., in Sessions Trial No. 43 of 2014, whereby the

respondent/accused (hereinafter referred to as the "accused") was

acquitted for the offence punishable under Section 302 of the

Indian Penal Code (for short "IPC").

Whether reporters of Local Papers may be allowed to see the judgment?

( 2025:HHC:14150 )

2. The facts giving rise to the present appeal, as per the

prosecution story are that on 10.12.2013 at about 7:30 P.M., at

Ward No. 4, Nagar Panchayat Banjar, District Kullu, when Layak

Ram was taking dinner in his house, mother of the accused, Smt.

Hima Devi came there and told him that her son, i.e. the accused,

had severely beaten Ramu Paledar inside the Gharat (water mill)

owned by one Chuni Lal and blood was oozing out from the mouth

of Ramu. Accordingly, Layak Ram telephonically informed the

police authorities of Police Station Banjar about the occurrence

having been disclosed to him by the mother of the accused, on the

basis of which, rapat was entered in Police Station Banjar.

Immediately thereafter the police party, headed by Sub-Inspector

Chint Ram, Station House Officer, Police Station Banjar, rushed to

the spot, where he associated Layak Ram and Smt. Hima Devi

from their houses and with the help of torch light, he inspected the

body and found Ramu lying on the threshold of the water mill and

when they touched the body of Ramu, he was found dead and

blood had oozed out from his wound. The Investigating Officer also

found blood stains on the bed, pillow and bed sheet, where

deceased was staying. Besides that some chicken pieces

alongside stove etc. were also found scattered inside the quarter

of the deceased. SI/SHO Chint Ram recorded the statement of ( 2025:HHC:14150 )

complainant Layak Ram under Section 154 Cr. PC and sent the

rukka to Police Station, Banjar for registration of case through

Constable Jamal Deen, pursuant to which, FIR was registered

against the accused. The Investigating Officer Chint Ram deputed

the police officials to guard the body of the deceased, as it was late

night. Thereafter, the police party went in search of the accused

and during search, police came to know that the accused with his

mother was residing in the house of one Arjun. However, his

mother informed the police about the absence of the accused. On

11.12.2013, the police officials went to the place of occurrence with

complainant Layak Ram and Hima Devi and minutely inspected

the spot. The spot was photographed, spot map was prepared and

statements of the witnesses were recorded. Blood stained stone

was found inside the water mill with fresh blood, which was seized

and taken into possession. Forms 25-35 were filed by the

Investigating Officer in the presence of the witnesses and

application seeking opinion about the cause of death was moved

before the Medical Officer. The dead body of the deceased was

removed from the water mill for postmortem and after conducting

the postmortem, the report was obtained. The police party again

went to the house of the accused, where mother of the accused

disclosed that the accused had come to the house and had ( 2025:HHC:14150 )

changed his blood stained clothes and then left for the market. The

accused was apprehended near bridge in Ward No. 4 and was

arrested. The accused was medically examined and his MLR was

obtained. In postmortem report, the Doctor opined that the cause

of death was head injury leading to cardio respiratory failure. The

accused while in custody made disclosure statement under

Section 27 of the Indian Evidence Act in presence of witnesses

and got recovered the blood stained clothes and shoes worn by

him at the time of commission of offence kept in his residence and

also got the place identified. During investigation, the demarcation

of the water mill was carried out and report alongwith tatima and

copy of jamabandi was obtained. The samples were sent to RFSL

Mandi for chemical analysis and reports were received. The

Investigating Officer also recorded the statements of witnesses

under Section 161 Cr. PC. After completion of the investigation,

police presented the charge-sheet before the learned Trial Court.

3. The prosecution, in order to prove its case, examined

eleven witnesses. Statement of the accused was recorded under

Section 313 Cr.P.C., wherein he denied the prosecution case and

pleaded to be innocent, however, in defence he did not lead any

evidence.

4. The learned Trial Court, vide impugned judgment dated ( 2025:HHC:14150 )

24.12.2014 acquitted the accused for the commission of the

offence punishable under Section 302 IPC, hence the instant

appeal preferred by the appellant/State.

5. The learned Senior Additional Advocate General for the

appellant/State contended that the impugned judgment is against

the law and facts, based upon mis-appreciation of evidence, which

ultimately resulted into miscarriage of justice, as such the same is

liable to set-aside. He further contended that the conclusion

arrived at by the learned trial Court is based on far-fetched

assumptions and presumptions, which are not warranted from the

record of the case. Lastly, he submitted that the impugned

judgment passed by the learned Trial Court may be quashed and

set-aside and the accused be convicted.

6. Conversely, the learned counsel for the respondent

contended that the material prosecution witnesses have not

supported the case of the prosecution and turned hostile, as such,

the judgment passed by the learned Trial Court is the result of

proper appreciation of the material on record and the same was

passed after appreciating the evidence and law in its right and true

perspective. He further contended that the learned Trial Court has

passed a well reasoned judgment, which does not require any

interference, thus the instant appeal, which sans merits, be ( 2025:HHC:14150 )

dismissed.

7. We have heard the learned Senior Additional Advocate

General for the appellant/State, learned counsel for the respondent

and carefully examined the entire records.

8. It is well settled by the Hon'ble Apex Court in a catena

of decisions that an Appellate Court has full power to review, re-

appreciate and reconsider the evidence upon which the order of

acquittal is founded. However, Appellate Court must bear in mind

that in case of acquittal there is double presumption in favour of

the accused. Firstly, the presumption of innocence is available to

him under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is

proved guilty by a competent Court of law. Secondly, the accused

having secured his acquittal, the presumption of his innocence is

further reinforced, reaffirmed and strengthened by the trial Court.

Further, if two reasonable views are possible on the basis of the

evidence on record, the Appellate Court should not disturb the

finding of acquittal recorded by the trial Court, merely, because the

Appellate Court could have arrived at a different conclusion than

that of the Trial Court.

9. It is also settled position that the burden of proof in a

criminal trial never shifts and it is always the burden of the ( 2025:HHC:14150 )

prosecution to prove its case beyond reasonable doubt on the

basis of acceptable evidence. In fact, it is a settled principle of

criminal jurisprudence that the more serious the offence, the

stricter the degree of proof required, since a higher degree of

assurance is required to convict the accused.

10. The case of the prosecution is that deceased Ramu

and accused were known to each other and information qua the

death of the deceased was firstly given by Smt. Hima Devi, mother

of the accused to complainant Layak Ram. The further case of the

prosecution is that during investigation, accused made disclosure

statement under Section 27 of the Indian Evidence Act and got

recovered his blood stained clothes, i.e. Jacket, Shoes and trouser

kept underneath the cot from the rented house, where he was

staying with his mother. It is also the case of the prosecution that in

the said occurrence accused had also sustained injuries and he

was medically examined. Therefore, in these circumstances, it is to

be determined as to whether on the relevant date, time and place,

accused committed murder of the deceased by giving him stone

blows on his head with intention to cause his death and as such,

entire evidence led by the prosecution is required to be scanned

carefully.

11. PW-1, complainant Layak Ram deposed that on ( 2025:HHC:14150 )

10.12.2013 around 7:30 P.M. Hima Devi came to his house and

told that some incident had taken place in the Gharat of Chunni

Lal, however, it was not disclosed by her that with whom the

quarrel had taken place and on her request, he telephonically

informed the police about the incident. Thereafter, this witness was

declared hostile and cross-examined at length by learned Public

Prosecutor. He specifically denied that he was informed by Hima

Devi that deceased Ramu was subjected to merciless beatings by

the accused and the blood was oozing out from his head and face.

Even though he admitted his signatures on his statement, Ext. PW-

1/A, recorded under Section 154 Cr. PC, but alleged that he had

not gone through the contents of the same before appending his

signatures. He admitted that on 11.12.2013 police again visited the

spot and prepared inquest report, Ext. PW-1/B, which bears his

signatures. He also identified photographs of the spot Ext P-1 to

Ext. P-4. He further admitted that on 11.12.2013, he made

statement that deceased and accused had been spending time

together and they also used to take meal etc. together, but denied

portion 'A' to 'A' of his statement Ext. PW-1/A recorded by the

police. In cross-examination, he stated that at the time when Hima

Devi visited his house, 3-4 persons also came on the spot and

there were other houses near to his house at a distance of 10 to ( 2025:HHC:14150 )

20 meters. He further stated that no written document was given to

him by the police on 10.12.2013 and the police obtained his

signatures in the police station. He admitted that no parcel was

sealed by the police in his presence.

12. PW-2 Hima Devi, mother of the accused had turned

hostile by stating that her son Sher Singh alias Sheru had been

residing with her and deceased Ramu was his friend, who was

residing in Gharat owned by Chuni Lal and her son. On

10.12.2013, when her son was in the house, police came to her

house and knocked the door at about 11:00 P.M. and had taken

her son to police station. Thereafter, this witness was cross-

examined at length by learned Public Prosecutor. In cross-

examination, she denied portion 'A' to 'A', 'B' to 'B', 'C' to 'C' and 'D'

to 'D' of her statement mark 'A' recorded under Section 161 Cr. PC

by the police. However, she stated that her son was in the habit of

taking cannabis and used to take drinks and some time used to

take the same with the deceased. In cross-examination by learned

defence counsel, she stated that her son had disclosed to her that

he was beaten up by the police and at that time her son had also

shown injuries to her.

13. PW-3, Meenakshi also turned hostile by stating that on

11.12.2013, she was called in the police station and at that time, ( 2025:HHC:14150 )

her husband was also with her. She stated that the police officials

took the clothes kept under the bed, i.e. Jacket, Pants and Shoes

and the said clothes were sealed in a cloth parcel and the parcel

was sealed, however, no seal was given to any person. Thereafter,

this witness was cross-examined at length by learned Public

Prosecutor. She denied portion 'A' to 'A', 'B' to 'B', 'D' to 'D' and 'F'

to 'F' of her statement Mark 'A' recorded by the police. She

identified jacket, Ext. P-10, jean pants, Ext. P-11 and shoes, Ext.

P-12 in the Court. However, she specifically denied that accused

got the house of Arjun identified to the police and disclosed that he

had kept the clothes and shoes etc. after committing the offence

under the bed.

14. PW-4, Inder Singh also turned hostile by stating that on

11.12.2013 he alongwith his wife had been called by the police to

the police station, where their statements were recorded and

thereafter they were called in some quarter near police station and

inside the quarter, clothes and shoes were sealed in a parcel.

Thereafter, this witness was cross-examined at length by learned

Public Prosecutor. He denied portion 'A' to 'A', 'B' to 'B' and 'C' to

'C' of his statement Mark 'A' recorded by the police under Section

161 Cr. PC. He further stated that jacket, Ext. P-10, pants, Ext. P-

11 and shoes, Ext. P-12 were not seen by him when the same ( 2025:HHC:14150 )

were sealed in a parcel. In cross-examination by learned defence

counsel, he admitted that he was taken to quarter when he was

called by the police and the clothes were already inside the

quarter. He further stated that he was told by the police that since

the clothes and shoes were to be taken into possession, his

signatures were required.

15. PW-5, Dr. Satish Rana, proved postmortem report, Ext.

PW-5/A of the deceased with his opinion, Ext. PW-5/B and stated

that in his opinion, cause of death was head injury leading to

cardio respiratory failure.

16. PW-11, Chint Ram, who investigated the present case,

stated that on 10.12.2013 at about 7:57 P.M. he received a

telephonic call from complainant Layak Ram that Hima Devi had

come to his house and she had disclosed that deceased Ramu,

who had been residing in the gharat of one Chuni Lal was

subjected to merciless beatings by her son Sher Singh and blood

was oozing out from his mouth and other parts of the body. On the

basis of aforesaid information, rapat, Ext. PW-11/A was recorded.

He further stated that he rushed to the spot with other police

officials and associated Layak Ram and Hima Devi and with the

help of torch light, they inspected the body of the deceased and

found that body was lying on the floor of the gharat and large ( 2025:HHC:14150 )

amount of blood had oozed out from the body. Thereafter, he

touched the body and found him dead and recorded the statement

of Layak Ram, Ext. PW-1/A. Thereafter, rukka was sent to police

station, pursuant to which, FIR, Ext. PW-7/A was registered. He

deputed police officials to guard the body, since it was late night

and then, he alongwith other police officials went in search of the

accused. During search, it was revealed that accused alongwith

his mother was residing in the house of one Arjun. In the

meantime, Hima Devi, who was present at the spot, had already

reached there and when she was asked about the accused, she

informed that accused was not in the house. The spot was

photographed and videographed and spot map, Ext. PW-11/B was

prepared. The blood stained stone, Ext. P-8 was seized from the

spot, which was sealed in a cloth parcel with seal 'N' (two seals) by

taking sample of seal on Ext. PW-1/E. The blood of the deceased

was lifted from the spot and was taken in one container and was

sealed in a parcel by affixing two seals of 'N'. He also prepared

inquest reports, Ext. PW-1/B and Ext. PW-1/C in presence of the

witnesses. On 11.12.2013, he moved application, Ext. PW-11/C to

the Medical Officer seeking opinion on Ext. PW-1/C, which is

encircled 'A'. Thereafter, body of the deceased was removed from

the water mill and sent for postmortem, vide application, Ext. PW-

( 2025:HHC:14150 )

11/D. Later on the accused was apprehended near bridge situated

in Ward No. 4 and was arrested vide memo, Ext. PW-11/E. Vide

application, Ext. PW-11/F, he was medically examined. While in

custody, the accused made disclosure statement in the presence

of Brij Bhushan and Gandhi Ram that he had kept his blood

stained clothes, which he was wearing at the time of occurrence,

at his residence and he could get the same recovered. Thereafter,

at the instance of accused, the place was identified, where he had

kept his blood stained clothes in presence of witnesses Meenakshi

Devi and her husband Inder Singh. The jean pants, jacket and

shoes were recovered vide seizure memo, Ext. PW-3/A and sealed

with seal 'H' by obtaining sample of seal on Ext. PW-3/B. He also

proved statements of Hima Devi, Ext. PW-11/H, statement of

Meenakshi, Ext. PW11/J and statement of Inder Singh, Ext. PW-

11/K. He also stated that he moved application, Ext. PW-11/L for

carrying out demarcation of water mill and demarcation report was

Ext. PW-6/A with tatima mauka, Ext. PW-6/B.

17. We have closely scrutinized the entire evidence on

record and from the closer scrutiny thereof, it has become clear

that the prosecution has failed to prove its case beyond

reasonable doubt.

18. The case of the prosecution is based upon the direct ( 2025:HHC:14150 )

evidence as well as circumstantial evidence. The first question

which arises for consideration before this Court is as to whether

the story of the prosecution inspires confidence on the strength of

direct evidence, which has been adduced by it. As per the case of

the prosecution, the incident when the accused was allegedly

hitting deceased Ramu with a stone, as a result of which, he died,

was witnessed by PW-2 Hima Devi only, who after witnessing the

incident immediately reported the matter to PW-1, Layak Ram who

in turn telephonically informed the police. However, both the

aforesaid witnesses i.e. PW-1, Layak Ram, and PW-2, Hima Devi

have not supported the case of the prosecution and had turned

hostile.

19. The law, so far as the evidentiary value of a hostile

witness is concerned, is settled. In a catena of decisions, the

Hon'ble Supreme Court had held that the evidence of a hostile

witness would not be rejected if spoken in favour of prosecution

but it can be subjected to close scrutiny and that portion of the

evidence, which is consistent with the case of prosecution, may be

accepted. In C. Muniappan v. State of T.N., (2010) 9 SCC 567,

the Hon'ble Apex Court settled the legal position as the evidence of

a prosecution witness cannot be rejected in toto merely because

the prosecution chose to treat him as hostile and cross-examined ( 2025:HHC:14150 )

him. The evidence of such witnesses cannot be treated as effaced

or washed off the record altogether but the same can be accepted

to the extent their version is found to be dependable on a careful

scrutiny thereof. Relevant portion of the aforesaid judgment reads

as under:

81. It is settled legal proposition that:

"6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."

(Vide Bhagwan Singh v. State of Haryana [(1976) 1 SCC 389 :

1976 SCC (Cri) 7 : AIR 1976 SC 202] , Rabindra Kumar Dey v. State of Orissa [(1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170] , Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980 SCC (Cri) 59] and Khujji v. State of M.P. [(1991) 3 SCC 627 : 1991 SCC (Cri) 916 : AIR 1991 SC 1853] , SCC p.

635, para 6.)

82. In State of U.P. v. Ramesh Prasad Misra [(1996) 10 SCC 360:

1996 SCC (Cri) 1278] this Court held that (at SCC p. 363, para

7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra [(2002) 7 SCC 543 : 2003 SCC (Cri) 112] , Gagan Kanojia v. State of Punjab [(2006) 13 SCC 516 : (2008) 1 SCC (Cri) 109] , Radha Mohan Singh v. State of U.P. [(2006) 2 SCC 450 : (2006) 1 SCC (Cri) 661] , Sarvesh Narain Shukla v.

Daroga Singh [(2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188] and Subbu Singh v. State [(2009) 6 SCC 462 : (2009) 2 SCC (Cri) 1106] .

83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."

20. It has been held in Ram Swaroop v. State of

Rajasthan 2004(13) SCC 134 , that the credibility of a hostile

witness cannot be discarded altogether. But this puts the court on ( 2025:HHC:14150 )

guard and cautions the court against acceptance of such evidence

without satisfactory corroboration. Relevant portion of the

aforesaid judgment reads as under:

"18. .............. So far as evidence of PWs 7 and 10 is concerned, they were declared hostile by the prosecution. It is no doubt true that merely because a witness is declared hostile his evidence cannot be discarded. The fact that a witness has resiled from the earlier statement made in the course of investigation puts the court on guard and cautions the court against acceptance of such evidence without satisfactory corroboration. ...................."

21. Thus, the principle of law as laid down by different

judgements of the Supreme Court that the testimony of hostile

witnesses shall not be completely discarded and the part of the

statement which supports the prosecution version can always be

taken into consideration, cannot be disputed. However, at the

same time, it is also true that their statements can only be

accepted with satisfactory corroboration. We have carefully gone

through the evidence of the aforesaid witnesses and we find that

their evidence is wholly unreliable. Both the aforesaid witnesses

were cross-examined at length by the learned Public Prosecutor,

but nothing favourable could be elicited from their lengthy cross-

examination. Therefore, in such circumstances, no benefit can be

derived by the prosecution from the statements of these witnesses.

Hence, the prosecution has failed to prove its case beyond

reasonable doubt on the strength of the direct evidence.

( 2025:HHC:14150 )

22. Now the next question which arises for consideration

before this Court is that as to whether the prosecution has been

able to prove its case on the basis of circumstantial evidence.

23. It is a well settled proposition of law that conviction can

be based on circumstantial evidence. But all the circumstances

relied upon by the prosecution must be clearly established. The

proved circumstances must be such as would reasonably exclude

the possibility of innocence of the accused. In other words, the

circumstantial evidence should be consistent with the guilt of the

accused and inconsistent with his innocence. The chain of

circumstance should be so complete to lead to the only conclusion

that it was only the accused and none else, who had committed

the crime. The principles on which the circumstantial evidence is to

be evaluated have been stated and reiterated by the Supreme

Court in numerous judgments.

24. In Sharad Birdhichand Sarda Vs. State of

Maharashtra, (1984) 4 SCC 116 where the Hon'ble Court while

discussing the entire gamut of decision has laid down the five

golden principles of proof in a case based on circumstantial

evidence thereby laying down that the following conditions must be

fulfilled before a case against an accused can be fully established:

"153. ... ... ... ... ... ... ...

(1) the circumstances from which the conclusion of ( 2025:HHC:14150 )

guilt is to be drawn should be fully established.

... ... ... ... ... ... ... ... ...

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused that is to say, they should not be explained on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except that one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused."

25. When a case rests on circumstantial evidence, the

circumstances must not only be consistent with the guilt of the

accused, but must also be inconsistent with his innocence meaning

thereby that every reasonable possibility of innocence of accused

must be excluded before the accused is held guilty of an offence on

the strength of circumstantial evidence.

26. In Sharad Birdhichand Sarda's case (supra), it has

further been held that in a case of circumstantial evidence, it is

incumbent upon the court to satisfy itself that:

"159. ... ... ... ... ... ... ... ...

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance point to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."

( 2025:HHC:14150 )

27. In the case of Vijay Shankar Vs. State of Haryana,

reported in (2015) 12 SCC 644, the Hon‟ble Apex held that the

circumstances taken cumulatively should form a chain so complete

that there is no escape from the conclusion that within all human

probability the crime was committed by the accused. Paragraph 8

of the aforesaid judgment reads as under:

"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu vs. State of Rajasthan, (2007) 2 SCC (Cri). 590."

28. In the case of State of Himachal Pradesh Vs. Raj

Kumar, reported in (2018) 2 SCC 69, Hon'ble Apex Court was

considering a case based on circumstantial evidence. Their

Lordships while taking note of the well settled legal position, in

Paragraphs 9 and 10 observed as under:

"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

( 2025:HHC:14150 )

10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-

"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v.Rajendran (1999) 8 SCC 679."

29. In Ramanand @ Nandlal Bharti vs. State of Uttar

Pradesh, 2022 SCC online SC 1396, the legal position has further

been reiterated as under:

"PRINCIPLES OF LAW RELATING TO APPRECIATION OF CIRCUMSTANCTIAL EVIDENCE

45. In 'A Treatise on Judicial Evidence', Jeremy Bentham, an English Philosopher included a whole chapter upon what lies next when the direct evidence does not lead to any special inference. It is called Circumstantial Evidence. According to him, in every case, of circumstantial evidence, there are always at least two facts to be considered:

a) The Factum probandum, or say, the principal fact (the fact the existence of which is supposed to proposed to be proved; &

b) The Factum probans or the evidentiary fact (the fact from the existence of which that of the factum probandumis inferred).

46. Although there can be no straight jacket formula for appreciation of circumstantial evidence, yet to ( 2025:HHC:14150 )

convict an accused on the basis of circumstantial evidence, the Court must follow certain tests which are broadly as follows:

1. Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

2. Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;

3. The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed b the accused and none else;

and

4. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.

50. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions.

In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The court has to drawn inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused."

30. In a recent judgment, in the case of Raja Naykar vs.

State of Chattisgarh, (2024) 3 SCC 481, the Hon'ble Supreme

Court has again reiterated as under:

"17. It can thus clearly be seen that it is necessary for the prosecution that the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The Court holds that it is a primary principle that the accused "must be" and not merely "may be" proved guilty before a court can convict the accused. It has been held that there is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved". It has been held that the facts so established should be ( 2025:HHC:14150 )

consistent only with the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. It has further been held that the circumstances should be such that they exclude every possible hypothesis except the one to be proved. It has been held that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probabilities the act must have been done by the accused."

31. We have considered the case in the light of the

aforesaid settled legal propositions. The circumstance relied upon

by the prosecution is that the blood found on clothes and shoes of

the accused, which he allegedly got recovered on the basis of

disclosure statement Ext. PW-10/A, under Section 27 of the Indian

Evidence Act made during investigation matches with the blood of

deceased Ramu. In order to prove recovery of clothes and shoes

by the accused, during investigation, on the strength of disclosure

statement, Ext. PW-10/A, the prosecution had examined PW-10,

ASI Gandhi Ram, who deposed that the accused while in custody,

made disclosure statement that he could get the clothes and shoes

recovered, which were hidden by him in his quarter and the said

statement bears his signatures. The prosecution had also

examined.PW-3, Meenakshi and PW-4, Inder Singh, in whose

presence the accused allegedly got recovered the clothes and

shoes from his quarter. However, both the aforesaid witnesses had

turned hostile and have not supported the case of the prosecution.

In cross-examination, PW-3 specifically denied that she had visited ( 2025:HHC:14150 )

the house of Arjun alongwith the police officials and other persons

and at that time accused got the clothes and shoes recovered. She

also stated that she had not seen any blood stains on the clothes.

PW-4 was also cross-examined at length and in his cross-

examination, he denied that clothes and shoes were produced by

the accused.

32. Although the prosecution had tried to connect the

accused with the blood stains found on his shoes and clothes on

the ground that the said blood was of deceased Ramu, but since

the recovery of the blood stained shoes and clothes itself is not

proved on record in accordance with law, mere disclosure

statement of the accused, Ext. PW-10/A will not automatically

prove that the aforesaid clothes and shoes belong to accused.

Moreover, even if it is presumed that the shoes and clothes belong

to accused, on which human blood was found, the prosecution has

failed to prove on record that the said blood found on the clothes

and shoes was that of the deceased, especially when it has come

on record that the accused had sustained injuries on his person.

Therefore, the possibility cannot be ruled out that the blood found

on the clothes and shoes of the accused was that of the accused

himself. As per the RFSL report, Ext. PW-11/M human blood was

detected on Ext. 8a (jacket) and Ext. 8c (shoes), however, results ( 2025:HHC:14150 )

were inconclusive with respect to blood group. Similarly, it has also

been opined in the RFSL report that human blood group 'A' was

detected on Ext. 5b Jacket, Ext. 5d lower of the deceased, Ext. 6

stone, Ext. 7 blood lifted from the spot and Ext. 8b pants of the

accused, but nothing has been opined by the expert if the blood

found on the clothes of deceased matched with the blood found on

the pants of the accused.

33. In Prakash Vs. State of Karnataka, reported in

(2014) 12 SCC 133, Hon'ble Apex Court held that when the blood

stained clothes are recovered, a serological comparison of blood

of deceased and appellant and blood stains on his clothes was

necessary and that was absent from evidence of prosecution. In

that case, the prosecution sought to prove that blood group of

deceased was AB and blood stains on appellant's seized clothes

also belong to blood group AB. This did not lead to any conclusion

that bloodstains on appellant's clothes were those of deceased's

blood as there are millions of people who have blood group AB

and it is quite possible that even appellant had the blood group AB.

Thus, merely since clothes of appellant were bloodstained and

stains bore same blood group as that of deceased, circumstances

could not be used against the appellant. Their Lordships have

further held that in a case of circumstantial evidence, there has to ( 2025:HHC:14150 )

be some degree of trustworthiness and certainly about existence

of circumstances. The relevant portion of the aforesaid judgement

reads as follows:

"40. The second discrepant statement was that Shivanna stated that the police had kept Prakash's clothes on the table. It was submitted, in other words, that the blood stained clothes were already seized by the police and kept on the table. We are not sure whether the actual statement made by Shivanna has been lost in translation.

41. In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains on Prakash's clothes were those of Gangamma's blood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had of the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping rt could not be determined. It is, therefore, quite possible that the blood stains on Prakash's clothes were his own blood stains and that his blood group was also AB.

              ...     ...      ...      ...        ...      ...       ...      ...
                    ...

45. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of the prosecution."

34. In the instant case also, the detection of only human

blood group 'A' will not automatically prove that the blood of

deceased was found on the pants of the accused as there are

millions of people who have the blood group 'A'. A serological

comparison of the blood of deceased and the blood stains on the

clothes and shoes of the accused was necessary which has not ( 2025:HHC:14150 )

been done. Hence, the prosecution has not been able to connect

the accused with the alleged commission of offence on the

strength of this circumstantial evidence.

35. Law is well settled with regard to the fact that

howsoever strong the suspicion may be, it cannot take the place of

proof. Strong suspicion, coincidence, grave doubt cannot take the

place of proof. The Hon'ble Supreme Court in Raj Kumar Singh

vs. State of Rajasthan, (2013) 5 SCC 722, on this aspect of the

matter held as under:

"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be proved and `will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between `may be and `must be is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be) true and `must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be true and `must be true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

36. In Raja Naykar's case (supra) the Hon'ble Supreme

Court has further reiterated as under:

( 2025:HHC:14150 )

"18. It is settled law that the suspicion, however, strong it may be, cannot take the place of proof beyond reasonable doubt. An accused cannot be convicted on the ground of suspicion, no matter how strong it is. An accused is presumed to be innocent unless proved guilty beyond a reasonable doubt."

37. Thus, the circumstantial evidence shown by the

prosecution is not to such an extent that it should be taken as

consistent with the hypothesis of the guilt of the accused and totally

inconsistent with his innocence. From the evidence on the record

and also from the discussion made herein above, this court is of

the view that the circumstances, which the prosecution has relied

upon could not be said to have been established beyond all

reasonable doubt.

38. Considering the overall facts and circumstances of the

case, we are of the view that there is no illegality, perversity and

infirmity in the impugned judgment of acquittal passed by the

learned trial Court, as such, the same is upheld. The present